Citation Nr: 0925954
Decision Date: 07/13/09 Archive Date: 07/21/09
DOCKET NO. 04-20 473A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
right arm disability.
2. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
right shoulder disability.
3. Entitlement to a rating in excess of 10 percent for
residuals of a crush injury to the right hand.
4. Entitlement to a compensable rating for a scar of the
right hand.
5. Entitlement to an initial compensable rating for
hammertoes of the right foot.
6. Entitlement to an initial compensable rating for
hammertoes of the left foot.
7. Entitlement to an initial rating in excess of 10 percent
for carpal tunnel syndrome of the right wrist.
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Riley, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1968 to
December 1978. This case comes before the Board of Veterans'
Appeals (Board) on appeal from August 2003 and April 2005
rating decisions issued by the Department of Veterans Affairs
(VA) Regional Office (RO) in Roanoke, Virginia.
In May 2009, the Veteran provided testimony at a hearing
before the undersigned Acting Veterans Law Judge at the
Board's Central Office in Washington, D.C. A transcript of
the hearing is of record.
In May 2009, the Veteran filed claims for entitlement to
service connection for pseudofolliculitis barbae, headaches
due to trauma with loss of consciousness, a psychiatric
disorder to include depression due to trauma, and hearing
loss and tinnitus due to trauma. These claims are referred
to the RO for the appropriate action.
The issues of entitlement to service connection for right arm
and right shoulder disabilities, and the issues of
entitlement to increased ratings for right carpal tunnel
syndrome, residuals of right hand crush injury, right foot
hammertoes, and left foot hammertoes are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. The evidence received since the May 1994 final rating
decision is not cumulative or redundant of the evidence
previously of record and raises a reasonable possibility of
substantiating the claim for service connection for a right
arm disability and the claim for service connection for a
right shoulder disability.
2. The Veteran's service-connected scar of the right hand is
superficial with no associated pain, tenderness, or
limitation of motion and does not approximate an area of 929
square centimeters or more.
CONCLUSIONS OF LAW
1. New and material evidence has been received to reopen a
claim seeking service connection for a right arm disability.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2008).
2. New and material evidence has been received to reopen a
claim seeking service connection for a right shoulder
disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
3. The schedular criteria for a compensable rating for a
scar of the right hand have not been met. 38 U.S.C.A. §
1155; 38 C.F.R. §§ 4.7, 4.14, 4.118, Diagnostic Codes 7802-
7804 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2009) defined VA's duty to assist a veteran in
the development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).
Since the Veteran's claims for service connection for right
arm disability and right shoulder disability are reopened,
VCAA notice meeting the criteria set forth in Kent v.
Nicholson, 20 Vet. App. 1 (2006), is not required.
In a VCAA letter dated in February 2006, the RO notified the
Veteran of the information and evidence necessary to
substantiate the scar claim, the information and evidence
that VA would seek to provide, and the information and
evidence the Veteran was expected to provide. See
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The United States Court of Appeals for Veterans Claims
(Court) has held that the VCAA notice requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim. Those five elements
include: 1) veteran status; 2) existence of a disability; 3)
a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). The Veteran was provided this notice by a March
2006 letter.
In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court
found that, at a minimum, adequate VCAA notice requires that
VA notify the claimant that, to substantiate an increased
rating claim: (1) the claimant must provide, or ask VA to
obtain, medical or lay evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life;
(2) if the diagnostic code under which the claimant is rated
contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant; (3)
the claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant diagnostic codes; and (4) the notice
must also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask VA to obtain)
that are relevant to establishing entitlement to increased
compensation. Id. at 43-44. The March 2006 notice letter
informed the Veteran that he had to provide, or ask VA to
obtain, medical or lay evidence demonstrating a worsening or
increase in severity of the disability, that if an increase
in disability was found, a disability rating would be
determined by applying relevant diagnostic codes which
typically provide for a range in severity of a particular
disability from 0 percent to as much as 100 percent depending
on the disability involved, and provided examples of the
types of medical and lay evidence that the Veteran could
submit or ask VA to obtain that are relevant to establishing
entitlement to increased compensation. One such example was
statements from employers regarding how the condition affects
the ability to work. See Vazquez-Flores v. Peake, 22 Vet.
App. 37 (2008).
Even if the Veteran had not been provided the notice required
by Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Board
concludes that he would not have been prejudiced in this
instance, as he was given specific notice concerning the
rating criteria for a scar of the right hand in the August
2003 rating decision, the June 2004 statement of the case,
and the September 2007 supplemental statement of the case.
Consequently, he had actual notice of the specific rating
criteria for this disability, and why a higher rating had not
been assigned, as well as an opportunity to present evidence
and argument to support a higher rating.
VCAA notice should be given before an initial AOJ decision is
issued on a claim. Pelegrini II, 18 Vet. App. at 119-120.
While complete VCAA notice for the Veteran's right hand scar
claim was provided after initial adjudication, this timing
deficiency was remedied by the issuance of VCAA notice
followed by readjudication of the claim. Mayfield v.
Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claim was
readjudicated in the September 2007 supplemental statement of
the case. Therefore, any timing deficiency has been
remedied.
The VCAA also requires VA to make reasonable efforts to help
a claimant obtain evidence necessary to substantiate his
claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This
"duty to assist" contemplates that VA will help a claimant
obtain records relevant to his claim, whether or not the
records are in Federal custody, and that VA will provide a
medical examination or obtain an opinion when necessary to
make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the Veteran,
including service treatment records and records from various
federal agencies. While the record contains evidence that
the Veteran is in receipt of benefits from the Social
Security Administration (SSA), after several attempts to
obtain these medical records, the RO was informed in a June
2007 SSA response that such records were unavailable. The
Board finds that further attempts to procure SSA records
would be fruitless.
Additionally, the Veteran was provided proper VA examinations
in response to his claims for an increased rating for a right
hand scar.
For the reasons set forth above, the Board finds that with
respect to the right hand scar claim the VA has complied with
the VCAA's notification and assistance requirements. The
appeal is thus ready to be considered on the merits.
I. Claims to Reopen
The Veteran's claims for entitlement to service connection
for a right arm disability and right shoulder disability were
initially denied in an unappealed May 1994 rating decision.
The evidence or record at that time, including a May 1994 VA
examination report, did not establish the presence of a
current disability of either the right arm or the right
shoulder.
The evidence received since the May 1994 denial of the claim
includes records of medical treatment from the Salem,
Virginia VA Medical Center (VAMC). In July 2003, during a
gastroenterology consultation, the Veteran's right arm was
found to have little movement upon physical examination.
Similarly, in January 2004, the Veteran reported that he had
poor control of his right arm, and upon physical examination,
the arm was noted to be weak with a slight drift.
The new medical evidence of record pertains to an
unestablished element necessary for service connection, that
is, indicating the presence of a current right arm and/or
right shoulder disability. Therefore, new and material
evidence has been submitted and reopening of these claims is
warranted.
II. Increased Rating Legal Criteria
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities (Rating Schedule). 38
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2008).
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation; otherwise, the lower evaluation will be assigned.
38 C.F.R. § 4.7 (2008).
In view of the number of atypical instances it is not
expected, especially with the more fully described grades of
disabilities, that all cases will show all the findings
specified. Findings sufficiently characteristic to identify
the disease and the disability therefrom, and above all,
coordination of rating with impairment of function will,
however, be expected in all instances. 38 C.F.R. § 4.21
(2008).
In evaluating a disability, the Board considers the current
examination reports in light of the whole recorded history to
ensure that the current rating accurately reflects the
severity of the condition. The Board has a duty to
acknowledge and consider all regulations that are potentially
applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The medical as well as industrial history is to be
considered, and a full description of the effects of the
disability upon ordinary activity is also required. 38
C.F.R. §§ 4.1, 4.2, 4.10.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
concern. Although a rating specialist is directed to review
the recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do
not give past medical reports precedence over current
findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged
ratings are, however, appropriate for an increased rating
claim when the factual findings show distinct time periods
where the service-connected disability exhibits symptoms that
would warrant different ratings. The relevant focus for
adjudicating an increased rating claim is on the evidence
concerning the state of the disability from the time period
one year before the claim was filed until VA makes a final
decision on the claim. Hart v. Mansfield, 21 Vet. App. 505
(2008).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
III. Scar of the Right Hand
Entitlement to service connection for the Veteran's scar of
the right hand, located on the palm at the base of the
fingers, was granted in a May 1994 rating decision with an
initial noncompensable evaluation assigned. The Veteran
submitted his claim for an increased rating in January 2003.
The August 2003 rating decision on appeal continued the
noncompensable rating.
The criteria for rating scars were revised for claims
received on or after October 23, 2008. See 73 Fed. Reg.
54,708 (Sept. 23, 2008) (to be codified at 38 C.F.R. § 4.118,
Diagnostic Codes 7800 to 7805). Because the Veteran's claim
was pending before October, 28, 2008, it will only be
evaluated under the rating criteria made effective from
August 30, 2002. See id.
Superficial scars which are painful on examination or are
unstable (frequent loss of skin over the scar) warrant a 10
percent evaluation. 38 C.F.R. § 4.118, Diagnostic Codes 7803
and 7804 (2008). Superficial scars that do not cause limited
motion warrant a 10 percent evaluation if they involve an
area or areas of 144 square inches (929 square centimeters.)
or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. Scars
may also be rated based upon the limitation of function of
the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805.
Upon VA examination in July 2003, the Veteran reported that
his right hand scar was painful. Physical examination showed
a faint 1.5 centimeter (cm) scar between the middle and ring
fingers. There was no ulceration, no depression, and the
scar was not disfiguring.
The Veteran's most recent VA examination of his right hand
scar was conducted in September 2007. The Veteran was noted
to have two scars; one on the lower side of his right palm
from a carpal tunnel release, and the second between the
middle and ring fingers of the right hand. The second scar
was very faint and less than 1cm long. There was no
tenderness to palpation, no adherence to the underlying
tissue, and no loss of motion or function. The examiner also
noted that the scar had no underlying soft tissue damage, and
no skin breakdown or ulceration. The diagnosis was a
residual scar between the middle and ring fingers of the
right hand from a laceration.
The Board finds that an increased rating of 10 percent is not
warranted for the Veteran's laceration residual scar of the
right hand. While the Veteran complained of pain in his scar
at the July 2003 VA examination, neither the July 2003 nor
the September 2007 VA examiners found that the scar was
painful or tender upon objective examination. In addition,
there is no evidence that the scar is poorly nourished, or
manifests ulceration or instability.
Furthermore, it is clear that the Veteran's scar does not
involve an area of 929 square cm or more and that he does not
experience limitation of motion from the scar. In fact, the
scar only measures between 1 and 1.5 cm long and both VA
examiners noted that it was very faint. The Veteran has not
been shown to meet the criteria for a compensable rating for
his right hand scar at any time during the period under
appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007).
Accordingly, a compensable rating is not warranted for the
Veteran's service-connected right hand scar.
The Board has also considered whether this case should be
forwarded to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R.
§ 3.321(b)(1) (2008). The record reflects that the Veteran
has not required any hospitalization for this disability and
that the manifestations of the disability are those
contemplated by the schedular criteria. There is no
indication that the right hand scar has resulted in
interference with employment. Therefore, the Board has
determined that referral of this case for extra-schedular
consideration is not in order.
ORDER
New and material evidence having been submitted, reopening of
the claim for entitlement to service connection for a right
arm disability is granted.
New and material evidence having been received, reopening of
the claim for entitlement to service connection for a right
shoulder disability is granted.
Entitlement to a compensable rating for a scar of the right
hand is denied.
REMAND
At his May 2009 hearing the Veteran testified that a Dr.
Degnan attributed the Veteran's right arm disability to
service. A December 9, 2004 letter from Dr. Degnan was
referenced by the Veteran's representative. The Board notes
that the claims file contains no records from Dr. Degnan and
that the duty to assist requires that such records be
requested.
Since there is medical evidence which is indicative of
current disability of the right arm and right shoulder, since
the Veteran has reported that a private doctor has related
current right upper extremity disability to an inservice
injury, and since there is a January 1972 service treatment
record indicating injury to the right arm and soreness of the
right scapula, a VA examination of the right arm and shoulder
is necessary. 38 C.F.R. § 3.159(c)(4).
The May 2009 testimony also indicates that Dr. Degnan treated
the Veteran for right carpal tunnel syndrome. The Board
notes that any medical records concerning the right wrist are
likely to include examination and discussion of the Veteran's
right hand. Consequently the Veteran's claims for increased
ratings for crush injury of the right hand and carpal tunnel
syndrome of the right wrist must be remanded so that any
records obtained from Dr. Degnan may be considered.
Since the Veteran's right hand and wrist claims must be
remanded, and since the Veteran's last VA examination of
these disabilities was in September 2007, the Veteran should
be provided a new VA examination in order to determine the
current severity of these disabilities.
With respect to the Veteran's claims for increased ratings
for hammertoes of the feet, the Veteran testified in May 2009
to having more hammertoes on each foot than shown on VA
examination in September 2007. Since this indicates that the
Veteran's hammertoe disabilities may have increased in
severity, the Veteran should be provided with a VA
examination to determine the current severity of his
hammertoe disabilities. See Snuffer v. Gober, 10 Vet. App.
400, 403 (1997).
With respect to the Veteran's increased rating claims, the
Board notes that the Veteran has not been provided complete
notice with respect to the VCAA and the Court's decision in
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).
The Veteran's most recent VA medical treatment records should
be obtained.
Accordingly, the case is REMANDED for the following action:
1. With respect to the Veteran's
increased rating claims, the Veteran
should be provided the VCAA notice
required under 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) (2008), as
interpreted by the Court in Vazquez-Flores
v. Peake, 22 Vet. App. 37 (2008).
2. Contact the Veteran and request that
he provide a copy of the December 2004
statement from Dr. Gregory Degnan
referenced by the Veteran in his hearing
testimony. The Veteran should also be
asked to provide a medical release to
allow for the procurement of treatment
records from Dr. Degnan.
3. Obtain the Veteran's VA medical
records dated from May 2004 to present.
4. The Veteran should be afforded an
examination of the right arm and right
shoulder. The examiner should state
whether or not the Veteran has any current
disability of the right arm or right
shoulder. If any current disability is
found the examiner should provide an
opinion as to whether it is at least as
likely as not (50 percent probability or
more) that any current right arm or right
shoulder disorders are related to any
incident of active duty service, including
the right upper extremity complaints
described by the January 1972 service
treatment record.
5. The Veteran should be afforded an
examination of the right wrist and hand in
order to determine the current severity of
his right carpal tunnel syndrome and
residuals of a crush injury to the right
hand disabilities.
6. The Veteran should be afforded an
examination of the feet in order to
determine the current severity of his
hammertoe disabilities.
7. If any benefit sought is not granted
to the Veteran's satisfaction, the agency
of original jurisdiction should issue a
supplemental statement of the case before
returning the case to the Board, if
otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
ROBERT E. P. JONES
Acting Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs